Belknap v. U. S. Bank National Ass'n

234 P.3d 1041, 235 Or. App. 658, 2010 Ore. App. LEXIS 652
CourtCourt of Appeals of Oregon
DecidedJune 16, 2010
Docket030100042; A138636
StatusPublished
Cited by9 cases

This text of 234 P.3d 1041 (Belknap v. U. S. Bank National Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belknap v. U. S. Bank National Ass'n, 234 P.3d 1041, 235 Or. App. 658, 2010 Ore. App. LEXIS 652 (Or. Ct. App. 2010).

Opinion

SERCOMBE, P. J.

This case began as a class action by former employees of U.S. Bank National Association (bank) to recover penalty wages. The class plaintiffs — former employees whose employment had terminated in the three years preceding the filing of the complaint — alleged that the bank had failed to timely pay them all their wages, as required by ORS 652.140. That statute requires generally that employees who quit or who are fired must be paid all wages earned and unpaid at the time of termination within a certain time period, which varies depending on the circumstances of the separation from employment. The class plaintiffs sought penalty wages under ORS 652.150 and attorney fees under ORS 652.200.

Pursuant to the class plaintiffs’ request under ORCP 32 C, the trial court certified a class composed of those former employees who gave 48 or more hours’ notice of intent to terminate employment and who were not paid timely pursuant to the statute. After years of discovery and motion practice, the bank moved to decertify the class, and the court granted the motion. The case between the bank and the two named plaintiffs — formerly the class representatives — went forward. After a three-day trial, the jury returned a verdict in favor of plaintiff Brule on her claim and in favor of the bank on plaintiff Belknap’s claim. The trial court awarded Brule nearly $16,000 in attorney fees.

Plaintiffs Belknap and Brule appeal, raising four assignments of error. The bank responds with three cross-assignments of error and also cross-appeals, raising two assignments of error of its own. For the reasons discussed below, we reverse the award of attorney fees on cross-appeal and otherwise affirm.

The relevant facts are largely procedural. As noted, this case began as a class action. ORCP 32 H requires that notice be given to the defendant in a potential class action before the action is commenced. That rule provides, in part:

“H(l) Thirty days or more prior to the commencement of an action for damages pursuant to the provisions of sections A and B of this rule, the potential plaintiffs’ class representative shall:
[662]*662“H(l)(a) Notify the potential defendant of the particular alleged cause of action; and
“H(l)(b) Demand that such person correct or rectify the alleged wrong.”

In September 2002, counsel for plaintiffs sent a letter to the bank that purported to be a “Pre-Litigation Notice Pursuant to ORCP 32 H.” That letter stated, in part:

“This office represents potential class plaintiffs in an action against [the bank]. The potential class plaintiffs were employees of [the bank] whose employment ended within the past three (3) years and who were not paid all wages when due as required by ORS 652.140.
“Plaintiffs demand that these violations be cured by making payment of all penalty wages, as calculated by ORS 652.150. * * *
“Pursuant to ORCP 32 H, the representative of the potential class plaintiffs provide this written notice that a Class Action lawsuit will be filed in 30 days, unless all class member claims are cured by [the bank] within that time.
“Unless [the bank] fully cures the alleged wrongs within thirty (30) days, a Class Action lawsuit will be filed for money damages, costs, and attorney fees. All cure efforts must be made through this office.”

Counsel for the bank responded to the letter, asserting that the letter did not meet the requirements of ORCP 32 H. Specifically, counsel maintained, the letter did not identify the “potential class representative” or the “particular alleged cause of action.” Noting that the bank could not, with only the information in the letter, “adequately investigate the vague allegations” in the letter and “attempt a cure,” counsel sought the name of the proposed class representative and the “specific nature of the alleged violation.” In a followup telephone conversation, plaintiffs’ counsel refused to provide the requested information. Plaintiffs’ counsel ultimately filed a complaint.

After a number of motions and related orders, the trial court certified a class nearly two years later, in July 2004. In support of their motion for class certification, the class plaintiffs asserted that resolution of the claims in the [663]*663class action would be accomplished primarily by documentary evidence, so that the potential complexity of the case should not bar a class action. In its order certifying the class, the court found:

“1. The class consists of approximately 600 to 1,900 persons;
“2. There are common questions of law and fact;
“3. The claims of the representative plaintiffs are typical;
“4. The representative parties will fairly and adequately protect the intent of the class; [and]
“5. The representative parties have complied with ORCP 32 H.”

(Footnote omitted.) The trial court stated that the “requirements of ORCP 32 A have been met, and under ORCP 32 B a class action is a superior method of adjudication.” In response to the bank’s concerns, the trial court stated:

“While it is true that there may be contested facts in many of the cases (perhaps 25%), both sides would be motivated to resolve most of these cases after further discovery. Furthermore, the remaining issues could be reasonably dealt with by taking advantage of the flexibility of the trial court in managing class action cases.”

Additional pretrial maneuvering ensued. For example, plaintiffs sought, and received, class-wide discovery from the bank. Based on that discovery, the bank moved to decertify the class; the motion was denied. Plaintiffs filed a number of ORCP 21 motions against the bank’s answer; the motions were denied in part and granted in part. Plaintiffs moved for an order compelling the production of the bank’s documents; the court ordered the bank to produce certain documents prepared by its lawyers. Plaintiffs moved for partial summary judgment on the issue of the bank’s liability; the trial court granted the motion.1 Those motions, and a [664]*664number of others, were filed and determined. The carbon footprint of the trial court file grew deep.

In July 2007, nearly five years after receiving plaintiffs’ notice that they would file a class action lawsuit, the bank filed a renewed motion for decertification. The bank argued that the three-year history of the case following certification had demonstrated that class action treatment was not a superior method of adjudication. While that motion was pending, the class plaintiffs filed what the bank describes as a “flurry” of motions. Finally, in September 2007, the trial court agreed with the bank and granted its motion for decertification.

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Belknap v. US BANK NAT. ASS'N
234 P.3d 1041 (Court of Appeals of Oregon, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
234 P.3d 1041, 235 Or. App. 658, 2010 Ore. App. LEXIS 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belknap-v-u-s-bank-national-assn-orctapp-2010.